State Consumer Disputes Redressal Commission
Adams Lift And Escalator Pvt. Ltd. vs Dr. Ritendra Chandra Mallik ... on 4 July, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/998/2016 ( Date of Filing : 17 Oct 2016 ) (Arisen out of Order Dated 19/09/2016 in Case No. Complaint Case No. CC/184/2015 of District Burdwan) 1. Adams Lift and Escalator Pvt. Ltd. Presently at 34, Ahari Pukur, Flat no.4 A/B, Front Block, Kolkata - 700 019. ...........Appellant(s) Versus 1. Dr. Ritendra Chandra Mallik -R.C.Mallik S/o Lt. Gunendra Chandra Mallik, 8/6, Sarada Pally, Vidyasagar Sarani, P.O. - Asansol - 713 304, P.S. - Asansol(S), Dist. Burdwan. 2. The Br. Manager, State Bank of India Asansol Branch, Asansol - 713 304. ...........Respondent(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Mr. Souvik Das, Advocate For the Respondent: Mr. Souren Mitra, Advocate Mr. Shyamal Kanti Sengupta, Jayanta Bhattacharya, Advocate Dated : 04 Jul 2018 Final Order / Judgement Sri Shyamal Gupta, Member
This Appeal is preferred against the Order dated 19-09-2016 passed by the Ld. District Forum, Burdwan in CC/184/2015, whereof the complaint has been allowed.
Briefly stated, case of the Complainant is that, he placed an order for installation of an elevator with the OP Nos. 1 to 3 and also paid a sum of Rs. 5,17,000/- against the quoted price of Rs. 5,72,500/-. In spite of that, the OP Company did not take necessary steps to complete the work causing great hardship to him; hence, the complaint.
OP No. 3, in its WV, submitted that the agreement for installation of the elevator was signed outside the territorial jurisdiction of the Ld. District Forum; also, it does not have any branch office in Burdwan district. Therefore, according to this OP, the instant case was not maintainable before the Ld. District Forum. The Appellant further disputed maintainability of the case on the ground that the parties agreed to refer all disputes to arbitration and therefore, according to it, the Complainant ought not file the instant complaint in the first place. It is alleged that the Complainant could not prepare the site ready for installation of the lift; hence the work could not be done.
Decision with reasons Heard the Ld. Advocates of the parties and gone through the documents on record.
On due consideration of the averments of the Ld. Advocate of the Appellant regarding maintainability of the case, we find no substance in his contention. Since the site of installation of the elevator in question is situated in Burdwan district and as claimed by the Ld. Advocate of the Appellant, preliminary work to facilitate installation of the lift has already been carried out by the company and some materials have also been fixed at the construction site, it is absolutely clear that part of the cause of action arose within the territorial jurisdiction of the Ld. District Forum. Therefore, notwithstanding the Appellant Company has no branch office in Burdwan district or the agreement in question was inked outside Burdwan district there was no legal impediment to initiate the instant complaint before the Ld. District Forum.
On the other hand, mentioning of arbitration clause in the agreement for settlement of disputes is no bar to file a complaint case. Some of the relevant decisions of the Hon'ble Supreme Court is appended below which is self explanatory.
In Skypay Couriers Limited v. Tata Chemicals Limited, (2000) 5 SCC 294 the Hon'ble Court observed:
"Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force."
In Trans Mediterranean Airways v. Universal Exports, (2011) 10 SCC 316 it was observed:
"In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy."
In the case of M/s National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy, 2013 (4) CPR 345 (SC), Hon'ble Supreme Court has observed thus :-
"29. The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, filed complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In Fair Air Engineers (P) Ltd. v. N.K. Modi, AIR 1997 SC 533, the 2 - Judge Bench interpreted that section and held as under :-
"the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words "in derogation of the provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy."
It is though averred by the Appellant that as the construction site was not ready in all respects, the elevator could not be installed in time, no material proof is forthcoming before us to establish such fact. Rather, the e-mail correspondences exchanged between the parties are very much indicative of the fact that the actual bone of contention revolved around the reluctance of the Respondent No. 1 to pay the enhanced price of the lift.
Taking a holistic view of the entire dispute, it seems, the Ld. District Forum rightly directed the Appellant to refund the deposited sum to the Respondent No. 1. However, it seems that the Ld. District Forum has not settled the issue of return of the materials those were installed at site by the Appellant.
In view of this, we are inclined to modify the impugned order to some extent to eliminate this omission.
The Appeal, thus, succeeds in part.
Hence, O R D E R E D The Appeal stands allowed on contest in part. The impugned order is modified to the extent that the Respondent No. 1 shall allow lifting of materials of the Appellant from the construction site at the cost and peril of the Appellant. Before that, Appellant has to ensure strict compliance of the order passed by the Ld. District Forum. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER